Madras High Court
A.Ravi vs The Secretary To Government on 5 July, 2013
Author: M.M.Sundresh
Bench: M.Jaichandren, M.M.Sundresh
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 05.07.2013 Coram The Honourable Mr.Justice M.JAICHANDREN and The Honourable Mr.Justice M.M.SUNDRESH Writ Appeal Nos.415 & 416 of 2011 & M.P.No.1 of 2011 W.A.No.415 of 2011 ------------------- 1.A.Ravi 2.C.V.Vasudevan 3.K.Vaithiyalingam 4.R.Purushothaman 5.M.Karuppiah Raja 6.V.Paramasivam 7.S.Backialakshmi 8.P.Asokan 9.C.Santhakumar 10.M.Sivakumar 11.S.Ramalingam 12.V.Karhikeyan 13.S.Selvaraj 14.C.Rajendran 15.R.Jayakumar 16.N.Manjunath Singh 17.M.Ganesan 18.A.Alavudeen 19.R.Ragupathy 20.R.Nagarajan 21.T.Subramanian 22.N.S.Seetha Mohan 23.B.Ranjendran 24.R.Ganesamoorthy 25.M.Karthikeyan 26.S.Mohamed Shahul Hameed 27.A.Vincent Manoharan 28.K.Karuppathal 29.P.V.Ravichandran 30.G.Elangovan .. Appellants in W.A.No.415/2011 Vs. 1.The Secretary to Government, Municipal Administration and Water Supply Department, Fort St. George, Chennai-600 009. 2.The Commissioner of Municipal Administration, Chepauk, Chennai-600 005. 3.M.Shanthi 4.B.Bhuvaneswari 5.I.Nakeeran 6.S.Sathiyamoorthy 7.P.Jothimani 8.B.Sumathi Selvi 9.S.Maharajan 10.K.Ezhilarasan 11.M.T.Palanisamy 12.P.Suresh Kumar 13.Theivavalli 14.J.Arokya Anbarasi 15.M.Sankar 16.T.M.Menaka Dinakar 17.R.E.Manonmani 18..S.K.Suganthi 19.R.Ganesan 20.S.Babu 21.I.Selvarani 22.A.Muthukrishnan 23.V.Srinivasan 24.V.R.Malligai 25.Lalithamani 26.S.Varalakshmi 27.A.Venkatachalam 28.T.Raja Vijaya Kamaraj 29.P.Selvakumar 30.S.Palanisamy 31.N.M.Krishnamoorthy 32.K.Seenuvasan 33.M.S.Mohammed Shereef 34.R.Jayaseelan 35.A.P.Baskar 36.C.Rajaram 37.V.George 38.J.Subramanian 39.S.Sekar 40.T.R.Srinivasa Moorthy 41.M.Vaitheeswaran 42.T.M.Menaka Dhinakar 43.K.Rajendran 44.S.K.Suganthy 45.R.Murugan 46.S.Perinbam 47.M.Lalithamani 48.L.Kumar 49.P.Gurusamy 50.N.Chandrasekaran 51.S.Palanisamy 52.N.Pugazhenthi 53.K.G.Shekar 54.M.Nileshwar 55.M.K.Palanisamy 56.I.Nakkeeran (R40 to R56 impleaded as party respondents vide order of Court dated 11.11.2011 made in M.P.Nos.2 & 3/2011 in W.A.No.415 & 416/2011) .. Respondents in W.A.No.415/2011 W.A.No.416 of 2011 ------------------ 1.G.Elangovan 2.S.Shanmugam 3.U.Saravanan 4.V.Karthikeyan 5.P.Stanley Jebasingh 6.K.Elankumaran 7.M.Gopinath .. Appellants in W.A.No.416/2011 Vs. 1.The Secretary to Government, Municipal Administration and Water Supply Department, Fort St. George, Chennai-600 009. 2.The Director of Municipal Administration, Chepauk, Chennai-600 005. 3.S.Robert Claive 4.N.M.Krishnamoorthy 5.M.Shanthi 6.V.Theivarally 7.A.P.Baskar 8.M.K.Palanisamy 9.M.Vaitheeswaran 10.S.Ashok Kumar 11.T.M.Menaka Dhinakar 12.S.K.Suganthy 13.M.Lalithamani 14.K.Rajendran 15.R.Murugan 16.L.Kumar 17.S.Perinban 18.N.Chandrasekaran 19.T.R.Srinivasa Moorthy 20.K.G.Shekar 21.P.Gurusamy 22.N.Pugazhenthi 23.S.Palanisamy 24G.Ravichandran 25.I.Nakkeran (R8 to R25 impleaded as party respondents vide order of Court dated 11.11.2011 made in M.P.Nos.2 & 3/2011 in W.A.No.415 & 416/2011) .. Respondents in W.A.No.416/2011 Writ Appeals filed under Clause 15 of the Letters Patent against the common order dated 07.01.2011 made in W.P.No.5041 of 2010 and 7521 of 2010 respectively. W.A.No.415 of 2011 ------------------- For appellants : Sri.Vijay Narayanan, Senior Counsel for Sri.R.Parthiban For respondents : Sri.R.Ravichandran Additional Government Pleader for R1 & R2 Sri.AR.L.Sundaresan, Senior Counsel for M/s AL.Gandhimathi for R3, R4, R7 to R10, R12 to R15, R17, R19, R20, R23, R24, R27, R28, R31 to R33, R36 & R38 Mr.N.Subramaniyan for R40 to R56 W.A.No.416 of 2011 ------------------- For appellants : Sri.Vijay Shankar For respondents : Sri.R.Ravichandran Additional Government Pleader for R1 & R2 Mr.N.Subramaniyan for R8 to R25 COMMON JUDGMENT
M.M.SUNDRESH,J.
The unsuccessful writ petitioners, who failed before the learned single Judge in their challenge made to the impugned amendment to the Tamil Nadu Municipal Engineering Service Rules 1997, pertaining to Rule 3, which fixes the ratio of 3:1 between the Assistant Engineers and Junior Engineers to the post of Assistant Executive Engineer, are the appellants before us.
2. The facts in brief:
2.1. The appellants are Diplomaholders. They are working as Junior Engineers with respondents 1 and 2. For the post of Junior Engineer, the feeder category is the post of Draughtsman. Accordingly, the appellants have been promoted from the feeder category of Draughtsman to the category of Junior Engineers. The private respondents before us are direct recruits appointed as Assistant Engineers. They hold Engineering Degrees being the pre-requisite for the said post. A Junior Engineer can become an Assistant Engineer on acquiring an Engineering Degree. The post of Junior Engineer comes under the category-I of Clause-I of the Tamil Municipal Engineering Subordinate Service Rules 1970. The post of Assistant Engineer comes under category-IV of the Tamil Nadu Municipal Engineering Service Rules 1997. Therefore, both the posts are distinct and different with their respective basic qualifications. The ratio of 3:1 has been fixed between the Assistant Engineers and the Junior Engineers, by taking the two posts as a whole. This was introduced on 24.12.1997 by way of the Tamil Nadu Municipal Engineering Service Rules 1997. Earlier a Government Order was issued by the first respondent in G.O.Ms.No.1021, Municipal Administration and Water Supply Department, dated 05.12.1988, expressing its desire to have the ratio of 3:1 between the degree and diplomaholders working as Assistant Engineers and Junior Engineers to the promotional post of Assistant Executive Engineer. However, this was not incorporated in 1997 Rules, which according to the first respondent, is by way of inadvertent, even though the said decision has been implemented in all the other wings of the State Government. Thereafter, by an impugned amendment made to Rule 3, which deals with the promotional post of Assistant Executive Engineer from the feeder category of Assistant Engineer and Junior Engineer, the ratio of 3:1 has been fixed. Now this amendment is under challenge before us, by the appellants who have been working as Junior Engineers(diploma holders). The learned single Judge dismissed the writ petitions by holding that the issues raised therein are covered by the earlier orders. Aggrieved against the same, the present writ appeals are filed.
2.2. Pending proceedings, all the Assistant Engineers, who have been promoted as Executive Engineers, have filed impleading petitions and the same were allowed. Now all the parties, including those who would be affected if the impugned rules are declared as ultra vires, are before us. Orders have also been passed to the effect that any promotion made would be subject to the result of the proceedings.
3. Submissions of the Appellants:
3.1. The learned counsels appearing for the appellants would submit that the ratio of 3:1 had already been followed in the category of Junior Engineer/Assistant Engineer. They have become one class. Therefore, in law, there cannot be further classification. The classification made does not have any nexus to the object sought to be achieved. The ratio laid down by the Honourable Apex Court does not apply to the case of hand. The appellants were made to go through the hierarchy as against the private respondents, who are direct recruits. Even as per Rules, the appellants will have to put in 10 years of service to be eligible for consideration to the post of Assistant Executive Engineer. Therefore the impugned Rule will have to be declared as unconstitutional.
3.2. A second submission has been made by the learned counsels on the ground that in any case, the impugned Rule cannot be made applicable to the vacancies in existence, prior to its introduction. A specific ground in this regard has been raised by the appellants in their affidavit filed in support of their writ petitions. Such a request was also acceded to by the Honourable Apex Court. Therefore, even assuming that the appellants are not entitled to succeed in their challenge to the impugned Rule, respondents 1 and 2 cannot follow the new impugned rule to the vacancies in existence prior to its inception. There are number of such vacancies including those arisen due to the sanctioning of new posts. To buttress their arguments, the learned counsels have made reliance upon the following judgments.
(i) B.L.GUPTA AND ANOTHER V. M.C.D (1998) 9 Supreme Court Cases 223;
(ii) A.MANOHARAN AND OTHERS V. UNION OF INDIA AND OTHERS (2008) 3 Supreme Court Cases 641;
(iii) FOOD CORPORATION OF INDIA AND OTHERS V. OM PRAKASH SHARMA AND OTHERS ( 1998) 7 Supreme Court Cases 676 (IV) UNION OF INDIA V. CENTRAL ADMINISTRATIVE TRIBUNAL (2008) 2 MLJ 744; and
(v) P.MURUGESAN AND OTHERS V. STATE OF TAMIL NADU AND OTHERS (1993) AIR SCW 1021.
4. Submissions of the Respondents:
4.1. The learned counsels appearing for the respondents, including the learned Additional Government Pleader appearing for respondents 1 and 2, have submitted that the issues involved in the challenge made to the impugned Rule are no longer res intgra. They have been settled already by the Hourable Apex Court. Therefore, it is not open to the appellants to raise the said issues, which had been concluded already between the promotees and direct recruits, while dealing with the Corporation of Madras.
4.2. Insofar as the second contention raised by the appellants is concerned, it is submitted that there is no prayer for seeking such a relief. It is further submitted that there is no rule as in the case dealt with by the Honourable Apex Court regarding the fixation of time in drawing the panel. The appellants have not challenged the panel for the subsequent years. The learned counsel appearing for the private respondents would submit that the old rule has already been followed to the then existing vacancies and therefore, no more direction is required. The learned counsels have made reliance upon the following judgments.
(i)THE STATE OF JAMMU AND KASHMIR V. SHRI TRILOKI NATH KHOSA AND OTHERS (1974) I Supreme Court Cases 19; and
(ii) P.MURUGESAN AND OTHERS V. STATE OF TAMIL NADU AND OTHERS (1993) 2 Supreme Court Cases 340.
4.3. The learned Additional Government Pleader also disputed the number of vacancies as stated by the appellants. Therefore, it is submitted that the appeals will have to be dismissed as devoid of merits.
5. DISCUSSIONS:-
5.1. The issue before us is as to whether the ratio of 3:1 followed as per the impugned amendment, dated 22.02.2010, is valid or not. For testing the said amendment, the ratio followed in the earlier cadre has got no relevancy. In fact, only for the first time, a single cadre is introduced at the level of Assistant Executive Engineer. As rightly submitted by the learned counsel appearing for the respondents and as held by the learned single Judge, the challenge made by the appellants to the impugned Rules, dated 22.02.2010, cannot be sustained as a similar issue was already decided by the Honourable Apex Court in P.MURUGESAN AND OTHERS V. STATE OF TAMIL NADU AND OTHERS (1993) 2 Supreme Court Cases 340. Admittedly in this case, the post of the Assistant Engineer and the Junior Engineer are different and distinct with their respective basic qualifications. Perhaps that is the reason why a Junior Engineer is entitled to become as an Assistant Engineer on acquiring a degree in Engineering. Both the posts are covered by different rules. The post of Junior Engineer is covered by the Tamil Nadu Municipal Engineering Subordinate Service Rules, 1970. Similarly, the post of Assistant Engineer comes under the category-IV of the Tamil Nadu Municipal Engineering Service Rules 1997. As discussed earlier, the qualifications are different. Therefore, we are of the considered view that the Judgments relied upon by the learned counsel appearing for the appellants did not help them in any way. In fact, the judgment relied upon by the learned counsel appearing for the appellants in ROSHAN LAL TANDON AND ANOTHER V. UNION OF INDIA AND ANOTHER (AIR 1967 Supreme Court 1889(1) has been taken note of by the subsequent decision in P.MURUGESAN AND OTHERS V. STATE OF TAMIL NADU AND OTHERS (1993) 2 Supreme Court Cases 340 cited supra, which covers the issues raised. The incidental submission made that the appellants were made to suffer by the ratio of 1:3 in the combined posts of Junior Engineer/Assistant Engineer and there cannot be any further ratio, in our considered view also cannot be countenanced. The appellants have no grievance to the ratio of 3:1 fixed in the combined cadre of Junior Engineers as well as the Assistant Engineers. They have been combined only for the purpose of promotion to the post of Assistant Executive Engineer. The classification, based upon the educational qualification, has already been approved by the judgment of the Honourable Apex Court in P.MURUGESAN AND OTHERS V. STATE OF TAMIL NADU AND OTHERS referred supra. Further more, the appellants, on facts, cannot compare the posts of Junior Engineers with Assistant Engineers, who forms a different category. In this connection, it is apposite to refer the decision of the Honourable Apex Court in P.MURUGESAN AND OTHERS V. STATE OF TAMIL NADU AND OTHERS, which is placed hereunder:
11. It is true that theory of classification should not be carried too far lest it may subvert, perhaps submerge, the precious guarantee of equality, as pointed out by Chandrachud, J. in State of J & K v. Triloki Nath Khosa. Minute and microcosmic classification should not be permitted nor should the Court countenance mini-classifications based on micro-distinctions, as pointed out by Krishna Iyer, J. in the same case. Looked at from this broad angle, it may appear there is some force in what the respondents contend viz., that once the graduate engineers and diplomaholder engineers constitute one class, perform same duties and discharge same responsibilities, placing a restriction on the diplomaholders alone (limiting their chances of promotion to one out of four promotions, as has been done by the impugned Amendment) is not justified but this may be a too simplistic way of looking at the issue. We cannot fail to take note of the fact that right from 1974 i.e., since the decision of the Constitution Bench in Triloki Nath Khosa this Court has been holding uniformly that even where direct recruits and promotees are integrated into a common class, they could for purposes of promotion to the higher cadre be classified on the basis of educational qualifications.
13. The learned Judge held that judged from the above standpoint it was impossible to accept the proposition that the classification of assistant engineers into degreeholders and diplomaholders rests on any unreal or unreasonable basis. They accepted the plea that the said classification was brought about with a view to achieving administrative efficiency in the engineering services. The higher academic qualifications, the learned Judge held, is at least presumptive evidence of a higher mental equipment. The learned Judge said, What is relevant is that the object to be achieved here is not a mere pretence for an indiscriminate imposition of inequalities and the classification cannot be characterized as arbitrary or absurd. That is the farthest that judicial scrutiny can extend. The learned Judge referred to the earlier decision of this Court in State of Mysore v. P. Narasing Rao and Union of India v. Dr (Mrs) S.B. Kohli to demonstrate that a distinction made on the basis of academic qualifications was always upheld by this Court. Indeed, in the latter case, the relevant rule required that a professor of orthopaedics must have a post-graduate degree in the particular speciality. It was upheld as a relevant requirement. The learned Judge then explained the decision in Roshan Lal Tandon v. Union of India (upon which substantial reliance was placed by the respondents in that case) as an authority certainly for the proposition that no discrimination could be made between promotees and direct recruits by reference to the source from which they were drawn but that it does not bar a classification based upon academic qualifications. In the words of Chandrachud, J.:
Roshan Lal Tandon case4 is thus no authority for the proposition that if direct recruits and promotees are integrated into one class, they cannot be classified for purposes of promotion on a basis other than the one that they were drawn from different sources. Having thus distinguished Roshan Lal Tandon case and Mervyn Continho v. Collector of Customs, the learned Judge concluded:
We are therefore of the opinion that though persons appointed directly and by promotion were integrated into a common class of Assistant Engineers, they could, for purposes of promotion to the cadre of Executive Engineers, be classified on the basis of educational qualifications. The rule providing that graduates shall be eligible for such promotion to the exclusion of diplomaholders does not violate Articles 14 and 16 of the Constitution and must be upheld.
14. This decision clearly supports the appellants contention and goes to sustain the validity of the impugned amendment. If the diplomaholders can be barred altogether from promotion, it is difficult to appreciate how and why is the rule-making authority precluded from restricting the promotion. The rule-making authority may be of the opinion, having regard to the efficiency of the administration and other relevant circumstances that while it is not necessary to bar the diplomaholders from promotion altogether, their chances of promotion should be restricted. On principle, there is no basis for the contention that only two options are open to a rule-making authority either bar the diplomaholders altogether or allow them unrestricted promotion on par with the graduates. This aspect has been emphasized by Venkatachaliah, J. in Roop Chand Adlakha v. Delhi Development Authority in the following words: (SCC p. 127, para 29) If diplomaholders of course on the justification of the job requirements and in the interest of maintaining a certain quality of technical expertise in the cadre could validly be excluded from the eligibility for promotion to the higher cadre, it does not necessarily follow as an inevitable corollary that the choice of the recruitment policy is limited to only two choices, namely, either to consider them eligible or not eligible. State, consistent with the requirements of the promotional posts and in the interest of the efficiency of the service, is not precluded from conferring eligibility on diplomaholders conditioning it by other requirements which may, as here, include certain quantum of service experience. In the present case, eligibility determination was made by a cumulative criterion of a certain educational qualification plus a particular quantum of service experience. It cannot, in our opinion, be said, as postulated by the High Court, that the choice of the State was either to recognise diplomaholders as eligible for promotion or wholly exclude them as not-eligible. Therefore, the submissions made by the appellants on the challenge to impugned rules are accordingly rejected as devoid of merits.
5.2. In so far as the second issue is concerned, the submission of the learned counsels appearing for the private respondents are rejected for the reason that the appellants have raised a specific plea to the effect that the impugned rule cannot be given retrospective effect to the posts of existing prior to its introduction. Therefore, there is no bar for us to go into the same, especially when all the parties are before us and they have been heard at length. Further more, even in a case where such a plea was raised for the first time, the Honourable Apex Court had issued appropriate direction in this regard, which we would like to respectfully follow. We also feel that it would be unfair not to give appropriate direction when the Honourable Apex Court in similar matters passed such orders. Further, if we hold that the impugned Rule does not apply to the vacancies that has arisen during the pendency of the old rule, then the consequence would necessarily follow. We are of the view that this issue is also covered by the judgment of the Honourable Apex Court in P.MURUGESAN AND OTHERS V. STATE OF TAMIL NADU AND OTHERS referred supra.
5.3. The learned Senior Counsel appearing for the private respondents made reliance upon the jdugment of the Honourable Apex Court in THE STATE OF JAMMU AND KASHMIR V. SHRI TRILOKI NATH KHOSA AND OTHERS (1974) 1 Supreme Court Cases 19. We are afraid that the decision does not have any application to the cases on hand. The issue before the Apex Court was as to whether a rule can be applied to the existing employee. Therefore, the issue as to whether a new rule would cover the vacancies in the old rule for the purpose of promotion, has not been dealt with. On the contrary, the Honourable Apex Court in B.L.GUPTA AND ANOTHER V. M.C.D (1998) 9 Supreme Court Cases 223, has held as follows:
9. When the statutory rules had been framed in 1978, the vacancies had to be filled only according to the said Rules. The Rules of 1995 have been held to be prospective by the High Court and in our opinion this was the correct conclusion. This being so, the question which arises is whether the vacancies which had arisen earlier than 1995 can be filled as per the 1995 Rules. Our attention has been drawn by Mr Mehta to a decision of this Court in the case of N.T. Devin Katti v. Karnataka Public Service Commission. In that case after referring to the earlier decisions in the cases of Y.V. Rangaiah v. J. Sreenivasa Rao, P. Ganeshwar Rao v. State of A.P. and A.A. Calton v. Director of Education4 it was held by this Court that the vacancies which had occurred prior to the amendment of the Rules would be governed by the old Rules and not by the amended Rules. Though the High Court has referred to these judgments, but for the reasons which are not easily decipherable its applicability was only restricted to 79 and not 171 vacancies, which admittedly existed. This being the correct legal position, the High Court ought to have directed the respondent to declare the results for 171 posts of Assistant Accountants and not 79 which it had done.
5.4. In the subsequent decision, the Honourable Apex Court in A.MANOHARAN AND OTHERS V. UNION OF INDIA AND OTHERS (2008) 3 Supreme Court Cases 641 was pleaded to observe as follows:
"25. Furthermore, the Regulations have been amended only with effect from 11.08.2004. It would have a prospective effect. It cannot be applied retrospectively. Any vacancy which has arisen prior to coming into force of the said amended Regulations must be filled up in terms of the law as was existing prior therefore. (State of Rajasthan V. R.Dayal, SCC para 8.)"
5.5. Further more, the judgment, which has been relied upon substantially by the respondents in P.MURUGESAN AND OTHERS V. STATE OF TAMIL NADU AND OTHERS (1993) 2 Supreme Court Cases 340 itself deals with the said issue in extenso. It is useful to extract the following paragraph.
"27. In our opinion Section 87 does indicate and manifest the concern of the legislature that the vacancies occurring in the Corporation Service should not be kept unfilled for a period of more than three months. Sub-section (3) which provides for the consequence of default on the part of the council to abide by sub-section (1) emphasises the concern of the Legislature. So also does sub-section (2). Sub-section (4) says that if there is going to be any delay or if a suitable or qualified person is not available, the council may appoint a person on temporary basis. The said provision is, therefore, analogous to, and indeed more specific than Rule 4 of the Andhra Pradesh Registration and Subordinate Service Rules considered in Rangaiah v. Sreenivasa Rao. Accordingly it must be held that the learned counsel for respondents 3 to 8 is right in his submission that the vacancies occurring prior to three months before the date of commencement of the impugned amendment ought to have been filled in accordance with the rules then obtaining. At the same time we cannot fail to recognise the force in the argument of the learned counsel for the appellants that the respondents not having raised the said contention in the High Court i.e., before the learned Single Judge or the Division Bench should not be allowed to raise the same in this Court for the first time. On a balancing of the contending equities, we are of the opinion that the following direction would be the appropriate one in the particular facts and circumstances of this case. The direction is this:
The Corporation shall ascertain the vacancies in the category of assistant executive engineers, that have arisen three months prior to the coming into force of the impugned amendment (introducing the quota of 3:1 as between degreeholders and diplomaholders) and shall work out the vacancies which would have gone to the diplomaholders if unamended rules had been followed. The Corporation shall also ascertain which of the diplomaholders would have been promoted in those vacancies. Such diplomaholders will be promoted in the vacancies that may be existing as on today and those that may arise in future. Until these diplomaholders are so promoted to the category of assistant executive engineers, no degreeholders shall be promoted. After these diplomaholders are so promoted and thereafter, it is obvious the amended rules shall be applied and followed. It is further directed that as and when a diplomaholder is promoted in pursuance of this direction, his promotion shall be given effect to from the date he ought to have been promoted. Such diplomaholder promotees shall be entitled to the benefit of seniority and pay fixation flowing from such retrospective promotions, but they shall not be entitled to the arrears of difference in salary for the period they have not actually worked as assistant executive engineers."
5.6. A faint attempt was made by the learned counsels appearing for the respondents that there is no mandate to prepare the seniority list. We do not agree with the said submission. The Tamil Nadu Municipal Engineering Service Rules 1997, while dealing with the promotion, stated as follows:
"(i)....The competent Authority shall prepare a panel of names of the eligible persons from the feeder categories every year and send a list of approved candidates to the Appointing Authority."
The records also would reveal that respondents 1 and 2 were in the process of preparing the panel for the year 2009-2010. They did not publish the same, in view of the then pending proposal to introduce the impugned rule by way of amendment to Rule 3. Therefore, looking from any angle, we are of the considered view that such of the diplomaholders, who would otherwise be eligible to be considered for the vacancies available prior to the impugned rule, will have to be considered under the old Rule to the promotional post of Assistant Executive Engineer, of course in accordance with law.
5.7. Accordingly we hold that the writ appeals are dismissed in so far as the challenge made to the impugned rule. No costs. However, the impugned rule is not applicable to the vacancies available prior to its introduction. We also do not propose to go into the exact number of vacancies that existed prior to the impugned rules as it is left in the hands of respondents 1 and 2. On the facts and circumstances of the case and after relying on the judgment of the Honourable Apex Court in P.MURUGESAN AND OTHERS V. STATE OF TAMIL NADU AND OTHERS referred supra, we issue the following directions.
(i) Such of those appellants/diplomaholders, who would have been otherwise considered for the vacancies that were in existence prior to the coming into the force of the impugned rule will have to be considered for the promotional posts of Assistant Executive Engineer under the old rule. This direction is subject to their qualification and eligibility in accordance with the rules.
(ii) The individuals, who are promoted and accordingly covered by the first direction issued by us, will carry forward their seniority, which shall be given effect to from the date they ought to have been promoted.
(iii) Such diplomaholders/promotees shall be entitled to the benefits of seniority and pay fixation flowing from such retrospective promotions. However, they shall not be entitled to the arrears of difference in salary for the period they did not actually work as Assistant Executive Engineers.
(iv) Those Executive Engineers, who have already been promoted under the new rules and who would have been promoted as per the old rules, shall not be disturbed. However they cannot claim seniority over those diplomaholders/promotees, if they are juniors to them in the combined category of Assistant Engineer/Junior Engineer.
(v) The respondents 1 and 2 are directed to identify the then available vacancies which were available prior to the coming into force of the amended rules and fill the same as per the directions issued earlier within a period of eight weeks from the date of receipt of a copy of this order. They shall also comply with the other directions also within the said time.
Consequently, connected miscellaneous petition is also dismissed.
raa To
1. The Secretary to Government, Municipal Administration and Water Supply Department, Fort St. George, Chennai-600 009.
2. The Commissioner of Municipal Administration, Chepauk Chennai 600 005